Hedrick v. Akers, U-W

Citation93 S.E.2d 160, 244 N.C. 274
Case DateJune 06, 1956
CourtUnited States State Supreme Court of North Carolina

Haworth & Haworth, by Bryon Haworth, Lewis J. Fisher, High Point, for plaintiffappellant.

James B. Lovelace, High Point, for defendant E. R. Lewellyn, trading as U-Wash-It Laundry, appellee.

J. V. Morgan, High Point, for defendant L. Belle Akers, appellee.

HIGGINS, Justice.

The evidence shows the defendant Akers owned a building on Green Street. She operated a sandwich shop in one of its three sections. Another tenant occupied the middle section. The defendant Lewellyn, a tenant, occupied the east section. Obligation on his part to provide drainage was neither shown nor admitted. He did not install the pipe. The evidence fails to show he had any duty with respect to, or responsibility for its upkeep, or any authority to remove it. A tenant is not responsible for injuries due to a defective sidewalk in front of a building under lease from the owner where the owner exercises control. 32 Am.Jur., 821, p. 699; Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842; Knight v. Foster, 163 N.C. 329, 79 S.E. 614, 50 L.R.A., N.S., 286. While contributory negligence on the part of the plaintiff will support the judgment of nonsuit as to the defendant Lewellyn, nevertheless, the judgment as to him in the court below must be sustained for the additional reason the evidence fails to show any negligent act or omission on his part, or the breach of any legal duty he owed the plaintiff.

The evidence of negligence on the part of the defendant Akers was sufficient to require its submission to the jury, unless the evidence of contributory negligence on the part of the plaintiff appears so clearly that no other reasonable inference can be drawn from it. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891. The plaintiff testified she was looking, but did not see the pipe. The question is whether she was negligent in failing to see it. Here are her own words: 'It was dirty around there and I didn't know whether there was dirt on the sidewalk, or whether it was concrete, or dirt washed up, or what. * * * I thought the pipe stuck up above the concrete some places as much as five inches and gradually tapered off to less than five inches * * * the pipe which was sticking up above the concrete was about eight or 10 feet in length. ' The plaintiff did not observe conditions clearly enough to tell the difference between dirt and concrete, although it was daylight and she had good eyes. The mixture of dirt and rain on the sidewalk created an extra hazard which called for a corresponding increase in vigilance.

The conclusion seems inescapable that the plaintiff in this case did not see what she should have seen. 'In its present state, the law is not able to protect one who has eyes and will not see. ' Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 601; Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40. 'A person traveling on a street is required in the exercise of due care to use his faculties to discover and avoid defects and obstructions, the care being commensurate with the danger or appearance thereof. ' Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379, 385. In the Welling case, the plaintiff was injured by stepping in a hole in...

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9 cases
  • Young v. Price
    • United States
    • Supreme Court of Hawai'i
    • 9 Diciembre 1963
    ...884, followed in Fain v. Margo Equip. Co., 366 S.W.2d 14 (Mo.Ct.App.1963); Daniel v. Morency, 156 Me. 355, 165 A.2d 64; Hedrick v. Akers, 244 N.C. 274, 93 S.E.2d 160; Cooney v. Panama City, 165 F.Supp. 381 (N.D.Fla.1958). Cf., Subasky v. The Great Atl. & Pac. Tea Co., 161 Pa.Super. 90, 53 A......
  • Tipton v. Barge
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 9 Abril 1957
    ...is axiomatic that, "`in its present state, the law is not able to protect those who have eyes and will not see'", Hedrick v. Akers, 1956, 244 N.C. 274, 276, 93 S.E.2d 160, 162, the duty to see or the allowable expectation that another will see is necessarily commensurate with the surroundin......
  • Petty v. City of Charlotte
    • United States
    • Court of Appeal of North Carolina (US)
    • 5 Mayo 1987
    ...(E.D.N.Y.1969) (construing New York law, owner held to have burden of showing unable to perform duty of care); Hedrick v. Akers, 244 N.C. 274, 275, 93 S.E.2d 160, 161 (1956) (where neither tenant's obligation to provide drainage nor tenant's installation of pipe nor tenant's duty of upkeep ......
  • Dunning v. Forsyth Warehouse Co., 454
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Febrero 1968
    ...of Winston (and Crawford Plumbing Co.), 170 N.C. 618, 87 S.E. 507; Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842; Hedrick v. Akers, 244 N.C. 274, 93 S.E.2d 160. '* * * (I)n so far as pedestrians are concerned, any liability of owner, or of occupant of abutting property for hazardous co......
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